John Ford

Last week, pro-Russian separatists in eastern Ukraine used a sophisticated anti-aircraft missile system called BUK to shoot down a civilian airliner carrying 295 civilian passengers, killing all aboard. The rebels appear not to have known at all what they were shooting at nor does it appear cared very much, having made no effort to distinguish between military and civilian aircraft. The killing of 295 civilians is the most grisly indication yet that Vladimir Putin’s aggressive maneuvers to expand Russian power in Eastern Europe are a grave danger to the world.

In light of this latest atrocity it is time for the world to call Vladimir Putin what he is: A war criminal.

This is not rhetorical bombast. Vladimir Putin easily fits the legal definition of a war criminal under international law and can and should be indicted by the International Criminal Court.

The shoot-down of MH17 is a war crime. Article 8 of the Rome Statute (the treaty that created the ICC) plainly states that launching military attacks with the knowledge that the attack will cause a loss of life that is not proportional to any possible military advantage is a war crime. This principle of proportionality is a basic tenet of the law of war which is why this principle is written into the rules of engagement used by the U.S. armed forces and is ingrained in every U.S. soldier who goes into a combat zone. It appears that pro-Russian rebels are simply trying to shoot down anything that flies without having any reliable way of identifying what they are shooting at. This kind of indiscriminate attack carries massive risk of killing civilians with little or no possible military advantage. It is a classic case of disproportional use of force and is a war crime under the Rome Statute.

It looks like Russian forces did not launch the attack themselves, relying instead on pro-Russian separatist militias. This does not get Putin off the hook. The rebels are working closely with Russian security forces, even receiving anti-aircraft training in Russia according to multiplesources. Further, the missile system the rebels used (like much of their arsenal) may have been given to them by the Russians according to U.S. officials and the Ukrainian government, a conclusion supported by video of a BUK launcher being moved across the border. International law does not allow Putin to employ reckless paramilitaries, give them dangerous weapons and then when those weapons are used to massacre civilians proclaim that he is shocked, shocked that there is gambling in this establishment.

There is clear precedent for holding Putin accountable for the actions of pro-Russian rebels. Omar Bashir, the dictator of Sudan, was indicted by the ICC for war crimes committed by the Janjaweed militia in Darfur, though the Janjaweed are not formally part of the Sudanese armed forces. Slobodan Milosevic was indicted for war crimes committed by ethnic Serb paramilitaries in Bosnia and Kosovo, though these paramilitaries were not formally a part of the Serbian armed forces. Putin does not have plausible deniability. He has supported this rebellion from the start and he armed it with the very weapons it used to commit mass murder. He is now liable for law of war violations these rebels commit.

The shoot down of MH17 isn’t the end of what should appear on any indictment of Putin. The strongest charge against Putin is that he launched a war of aggression. This is the same charge that most of the members of the Nazi high command faced at Nuremberg. Ever since the Kellogg-Briand Pact of 1928, it has been illegal under international law to wage aggressive war. Putin has launched two separate wars of aggression against his neighbors, a feat matched in my lifetime only by Saddam Hussein. In addition to invading the Ukraine and annexing the Crimean Peninsula this year Putin also launched an invasion of Georgia in 2008. Neither war can be justified as self-defense. Both of these wars were blatantly illegal under international law. And then of course there is the brutal war in Chechnya, which Putin directed as Prime Minister in 1999, in which civilian populations were devastated by deliberate attacks on populated areas so brutal that the U.S. Holocaust Memorial Museum placed Chechnya on its Genocide Watch List.

These crimes would be easy enough to prove. The greater hurdle is jurisdiction. Russia, like the U.S., Israel, China, India, and many other powers has not ratified the Rome Statute. The ICC can only exercise jurisdiction over 1) nationals of states that ratify the treaty, 2) crimes committed in states that ratify the treaty, or 3) cases where the UN Security Council approves an indictment. This is how Omar Bashir was able to escape indictment for so long while violence in Darfur raged – he never signed the treaty and committed all his crimes on his own soil. The ICC had no jurisdiction until Bashir’s crimes became so outrageous that even his friends in Beijing were too ashamed to use their Security Council veto to protect him.